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2026 DAILYLAW 335 (KER)

K. B. Rahulan v. Bridal Gold India

2026-03-17

T R Ravi

body2026
ORDER : T.R. Ravi, J. C.R.P. No.369/2025 has been filed challenging an order dated 29.03.2025 in E.A.No.679/2023 in E.P.No.99/2021 passed by the II Additional Sub Court, Thrissur. C.R.P. No.371/2025 has been filed challenging an order dated 18.03.2025 in E.A.No.680/2023 in E.P.No.167/2021 of the II Additional Sub Court, Thrissur. The revision petitioner and the respondent in these cases are the same. The petitioner is the judgment debtor and the respondent is the decree holder. The suits were filed by the respondent for realisation of amounts. O.S.No.16/2018 was instituted on 10.01.2018 and O.S.No.35/2018 was instituted on 03.05.2018. The suit were initiated after the coming into force of the Commercial Courts Act in 2013 which became operative in Kerala only with effect from 05.03.2020. As such, these were suits which were pending when the came into force. 2. Pending the suits, the parties had arrived at a settlement and the plaintiff gave up substantial claim which resulted in a decree on 10.11.2020 in CRP No.369/2025 and 29.09.2020 in CRP No.371/2025. The decree was passed after the Commercial Courts Act was made applicable in Kerala. The decree holder filed execution petitions since the compromise decree was not honoured. The petitioner thereupon filed applications contending that the decree is not executable since it has been passed by a court which lacks inherent jurisdiction. The execution court considered the objection and rejected the plea relying on a judgment of this Court in Kalleri Kunhammed v. K.V. Muhammed (2023 (1) KHC 38) which was rendered in similar circumstances. The said order has been challenged in these civil revision petitions. 3. The counsel for the petitioner relied on the judgments in Meenachil Rubber Marketing and Processing Co- operative Society Ltd. v. Kadaplamattom Service Co-operative Bank Ltd. ( 2025 (2) KHC 239 ) , Asma Lateef v. Shabbir Ahmad (2024 KHC 6029) , Balvant N. Viswamitra And Others V. Yadav Sadashiv Mule (Dead) through LRs. and Others (2004 KHC 1643) , Joginder Singh (Dead) Thr. Lrs V. Dr.Virinderjit Singh Gill (Dead) Thr. Lrs. (2024 KHC 8471) , Antony V. Thandiyode Plantations (Pvt.) Ltd. ( 1995 KHC 342 ) and Surendran C.K. V. Kunhimoosa ( 2023 (7) KHC 257 ) 4. and Others (2004 KHC 1643) , Joginder Singh (Dead) Thr. Lrs V. Dr.Virinderjit Singh Gill (Dead) Thr. Lrs. (2024 KHC 8471) , Antony V. Thandiyode Plantations (Pvt.) Ltd. ( 1995 KHC 342 ) and Surendran C.K. V. Kunhimoosa ( 2023 (7) KHC 257 ) 4. The counsel for the respondent relied on the judgment of the Hon'ble Supreme Court in Vasudev Dhanjibhai Modi v. Rajabhai Adbul Rehman and Others ( 1970 KHC 439 ) Rafique Bibi (Dead) by Lrs V. Sayed Waliuddin (Dead) by Lrs. And Others ( 2004 KHC 356 ) and Kalleri Kunhammed V. K.V. Muhammed (2023 (1) KHC 38) in support of his contentions. 5. The facts are not in dispute. The only question is whether at the stage of execution of a compromise decree a contention can be raised that a decree itself was a nullity and hence not executable since the court which passed the decree did not have jurisdiction after coming into force of the Commercial Courts Act . 6. In Meenachil Rubber (supra) , a Division Bench of this Court held that a plea of inherent lack of jurisdiction can be taken at any stage of the proceedings or even in collateral proceedings. The court held that unlike an objection to a territorial or pecuniary jurisdiction, inherent lack of jurisdiction renders the proceedings before the forum void. In Asma Lateef (supra) , the Hon'ble Supreme Court held that under Section 47 of the Code Of Civil Procedure an execution court can dismiss an execution application if the decree put to execution is unmistakably found to suffer from an inherent lack of jurisdiction of the court that made the same, rendering it a nullity in the eye of law. The court however said that the lack of jurisdiction must be patent on the face of the decree to enable an executing court to conclude that the decree was a nullity and that all irregular or wrong decrees would not necessarily be void. In Balvant N. Viswamitra (supra) the Hon'ble Supreme Court considered the terms void decree, illegal decree, incorrect decree and irregular decree and drew a distinction between the same. The court held that validity of a void decree can be challenged at any stage and even in execution of collateral proceedings. In Balvant N. Viswamitra (supra) the Hon'ble Supreme Court considered the terms void decree, illegal decree, incorrect decree and irregular decree and drew a distinction between the same. The court held that validity of a void decree can be challenged at any stage and even in execution of collateral proceedings. In Joginder Singh (supra) , the Hon'ble Supreme Court considered whether decree passed by a court without jurisdiction can be challenged in the execution stage under Section 47. The court however said that if the court has jurisdiction and there is only a defect in its exercise it can be waived by the parties. Regarding the question as to how the execution court should deal with compromise agreements entered into after the passing of the decree, the court held that the effect of the compromise on the excutability of the decree depends upon the intention of the parties, which is a mixed question of law and fact and has to be determined by the executing court. In Antony (supra) , a Full Bench of this Court considered the question and held that if the court passes a decree without jurisdiction it is a nullity and whenever it is sought to be enforced and even at the stage of execution and collateral proceedings its invalidity can be set up. In Surendran C.K. (supra) , this Court considered the stage at which the question of maintainability of the suit is raised and held that in case of pecuniary or territorial jurisdiction, the question of maintainability has to be raised at the first instance. The court however drew a distinction when it came to cases where there is an inherent lack of jurisdiction. However in the same judgment considering effect of Section 6 of the Commercial Courts Act , the court held that the wording used in Section 6 that the Commercial Court shall have jurisdiction to try all suits and applications relating to a commercial suit of a specified value does not say anything about the ouster of jurisdiction of regular civil court. In Vasudev Dhanjibhai Modi (supra) , Hon'ble Supreme Court considered the question of inherent lack of jurisdiction. In paragraphs 7 & 8 the court held as follows: “7. In Vasudev Dhanjibhai Modi (supra) , Hon'ble Supreme Court considered the question of inherent lack of jurisdiction. In paragraphs 7 & 8 the court held as follows: “7. When a decree which is a nullity, for instance, where it is passed without bringing the legal representatives on the record of a persons who was dead at the date of the decree, or against a ruling prince without a certificate, is sought to be executed an objection in that behalf may be raised in a proceeding for execution. Again, when the decree is made by a Court which has no inherent jurisdiction to make it, objection as to its validity may be raised in an execution proceeding if the objection appears on the face of the record: where the objection as to the jurisdiction of the Court to pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial or which could have been but have not been raised, the executing Court will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction. In Jnanendra Mohan Bhaduri v. Rabindra Nath Chakravarti, (60 Ind App 71 : AIR 1933 PC 61 ) the Judicial Committee held that where a decree was passed upon an award made under the provisions of the Indian Arbitration Act, 1899, an objection in the course of the execution proceeding that the decree was made without jurisdiction, since under the Indian Arbitration Act, 1899, there is no provision for making a decree upon an award, was competent. That was a case in which the decree was on the face of the record without jurisdiction. 8. In the present case the question whether the Courts of Small Causes had jurisdiction to entertain the suit against Munshi depended upon the interpretation of the terms of the agreement of lease, and the user to which the land was put at the date of the grant of the lease. These questions cannot be permitted to be raised in an execution proceeding as as to displace the jurisdiction of the Court which passed the decree. These questions cannot be permitted to be raised in an execution proceeding as as to displace the jurisdiction of the Court which passed the decree. If the decree is on the face of the record without jurisdiction and the question does not relate to the territorial jurisdiction or under S.11 of the Suits Valuation Act, objection to the jurisdiction of the Court to make the decree may be raised; where it is necessary to investigate facts in order to determine whether the Court which had passed the decree has no jurisdiction to entertain and try the suit, the objection cannot be raised in the execution proceeding.” 7. The Hon'ble Supreme Court held that inherent lack of jurisdiction should be one which is evident from the face of the record itself and cannot be something which is to be determined after an investigative process. 8. The counsel for the respondent submitted that as far as Commercial Courts are concerned, the duty is cast upon the court to verify whether the suit is a commercial suit on the basis of the definitions in the Act regarding the suit of specified value, etc. It is hence submitted that such a determination can be done only after going through the pleadings in the case and other factors and is not something which have been visible from the decree itself. It is hence submitted that such cases cannot be treated as cases in which a decree is a nullity. In Rafique (supra) , the Hon'ble Supreme Court followed the judgment in Vasudev Dhanjibhai Modi ( supra) . In paragraph 7 the court held as follows: “7. Two things must be clearly borne in mind. Firstly, the Court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. The order may be 'a nullity' and 'void' but these terms have no absolute sense their meaning is relative, depending upon the Court's willingness to grant relief in any particular situation. If this principle of illegal relativity is borne in mind, the law can be made to operate justly and reasonably in cases where the doctrine of ultra vireos, rigidly applied, would produce unacceptable results. (Administrative Law, 8 th Edition, 2000, Wade and Forsyth, p.308). Secondly, there is a distinction between mere administrative orders and the decrees of Courts, especially a superior Court. (Administrative Law, 8 th Edition, 2000, Wade and Forsyth, p.308). Secondly, there is a distinction between mere administrative orders and the decrees of Courts, especially a superior Court. The order of a superior Court such as the High Court, must always be obeyed no matter what flaws it may be thought to contain. Thus a party who disobeys a High Court injunction is punishable for contempt of Court even though it was granted in proceedings deemed to have been irrevocably abandoned owing to the expiry of a time limit, (ibid, p.312)” 9. In Kalleri Kunhammed (supra) , this Court considered a similar instance where a contention was raised at the execution stage stating that the court lacked jurisdiction after the coming into force of the Commercial Courts Act and hence the decree is a nullity. This Court in paragraphs 11 to 14 considered the impact of Section 15(5) of the and held that in cases which were pending at the time coming into force of the Act, which were not transferred and which resulted in a decree, the judgment debtor cannot at the stage of the execution challenge the proceedings as not maintainable. The Court took note of the fact that the judgment debtor did not raise the issue at any stage till the execution. In this case, there is an additional fact that the judgment debtor willingly participated in a mediation and accepted a decree which was for a lesser amount than the plaint claim since it is advantageous to him. After having gained such an advantage in the decree, the petitioner cannot be heard to contend that the decree is not executable. 10. I do not find any reason to take a different view than the view taken in Kalleri Kunhammed (supra) , which has been relied upon by the court below also while finding that the execution petition is maintainable. The Civil Revision Petitions fail and are dismissed.